Catherine Sas, K.C.
Preet GillHumanitarian and Compassionate (“H&C”) applications are often the last resort for persons left with no other means of immigrating or remaining in Canada due to their personal circumstances. Under s.25(1) of the Immigration, Refugee and Protection Act (“IRPA”), H&C applications can be made from inside or outside Canada as an alternative to meeting the usual criteria for immigration. Individuals who are otherwise inadmissible to Canada may also be able to apply for special consideration based on H&C grounds.
The option of making an H&C application is available to individuals who can clearly demonstrate the need for an exemption from the requirements of IRPA and also provide compelling H&C factors for consideration. However, Immigration, Refugees and Citizenship Canada (“IRCC”) sets out that applying for H&C consideration is not meant to be used as an alternative means of applying for Permanent Residence (“PR”) in Canada, rather it is an exceptional measure and that an applicant must provide sufficient evidence that this measure is warranted in the circumstances of the case.
Decisions on H&C applications are made on a case-by-case basis and officers have the discretion to consider a wide range of factors. These factors include an applicant’s ability to demonstrate their establishment in Canada, ties to Canada, family considerations, the best interests of children and the existence of exceptional circumstances. When assessing an H&C application immigration officials can evaluate an individual’s circumstances based on the information that is provided to them. Officers have considerable discretion in assessing whether to approve or refuse an H&C application.
There is a very high threshold to meet for those who make an application for PR based on H&C grounds. However, there are a number of significant factors for consideration. Building your case based upon your circumstances and experiences and providing sufficient evidence can prove to be an effective method for applicants to receive a favourable decision. Applicants have the opportunity to tell their story and convince an immigration officer that they deserve to be in Canada based on H&C grounds.
At our immigration law firm, we recommend these steps to maximize the chances of receiving a positive decision with an H&C application:
Submit strong supporting evidence: The forms are just the skeleton of the application, the supporting documents put the flesh on the bones to make the application take form. Beyond submitting the application forms, applications should be supported by strong and relevant supporting documents that aid in demonstrating why your circumstances warrant special consideration. These documents can include medical reports, psychological reports and specific research on country conditions;
Demonstrate strong ties to Canada: H&C applications should always be supported by evidence of the applicant’s ties to Canada. This can include demonstrating establishment within your community, support of family members in Canada, volunteer work and employment in Canada. Documents such as employment records, letters of support and tax records are all helpful;
Provide evidence of exceptional circumstances: Demonstrate the existence of exceptional circumstances by providing evidence to show the seriousness of your situation such as health issues, best interests of children, family separation and potential hardships in your home country;
Be transparent: Transparency and honesty are essential to all immigration applications. Disclosing relevant past and present circumstances is essential and any false information could lead to serious legal consequences and/or receiving a negative decision. Acknowledge and take responsibility for the shortcomings of your case;
Update the application regularly: IRCC’s current processing time for H&C applications is 25 months. The onus is on the applicant to provide relevant and current information for assessment. A lot can change within two years. Updating your application regularly will ensure that when an immigration officer comes around to assess and process your application, they will have current and comprehensive information available to make a decision.
Let’s consider a potential H&C case:
Applicant: A 70-year-old man from the Philippines who has been in Canada for 4 years seeks to remain in Canada with his family. He is a visitor and lives with his niece and nephew and their two young children. He has no family in the Philippines and is battling chronic health issues. He is heavily reliant on his niece and nephew for emotional, physical and financial support.
What supporting documents could the applicant provide with an H&C application?
In addition to the immigration application forms, the applicant could provide supporting documents to show the lack of support and resources available for his care in the Philippines, letters of support from his family members and friends in Canada, his health records, the availability of financial support and care in Canada, documents to show his relationship with the children and the impact his departure would have on them and their relationship, most often a psychological report.
While an H&C application provides an opportunity to obtain PR outside of general immigration application criteria, the wide range of discretion open to officers makes it difficult to predict the chances of success. Submitting a complete, comprehensive and compelling application is the key to meeting the stringent criteria and maximizing the chances of a successful outcome.
Seeking guidance from an experienced immigration lawyer who can assist you with navigating the challenges of an H&C application is important as it can be easy to overlook key factors that could potentially lead to a favourable decision.
